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December 20, 1993

JOSEPH A. TAYLOR, Plaintiff,
UNITED STATES ARMY and M.P.W. STONE, Secretary of the Army, et al., Defendants.


The opinion of the court was delivered by: JAMES B. MORAN

Plaintiff Joseph Taylor (formerly known as Joseph Krejci, III) brings this action against the United States Army, Secretary of the Army, M.P.W. Stone, and former Secretary of the Army John Marsh, Jr., under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Before this court is defendants' motion for summary judgment. Federal subject matter jurisdiction is based on 28 U.S.C. § 1331. For the reasons stated below, defendants' motion for summary judgment is granted.


 Joseph Taylor is a veteran and former employee of the U.S. Postal Inspection Service. In June 1977, Taylor left the Postal Service to accept a position with the U.S. Army Material Readiness Command in Rock Island, Illinois (the Rock Island Arsenal or RIA), in the field of quality assurance and reliability. Following a protracted dispute over pay, Taylor resigned from his position at the RIA on July 31, 1979. Subsequent to his resignation he attempted to regain employment with the Postal Inspection Service and with other federal agencies, without success. In May 1985 he filed this action, alleging that the RIA circulated false information about him to prospective employers, in an attempt to discriminate against him on the basis of age.

 The assistant U.S. Attorney in charge of this case, Thomas Walsh, ascertained that what Taylor really wanted from this lawsuit was a job. Accordingly, and in the hope that the suit could be settled without actual litigation, he encouraged Taylor to apply for a number of federal positions. The suit was voluntarily dismissed, with leave to reinstate. Unfortunately, Taylor was unsuccessful in his pursuit of federal employment and the case reappeared, this time with various additional and later claims.


 Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir. 1990). In deciding a motion for summary judgment the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Richardson v. Penfold, 839 F.2d 392, 394 (7th Cir. 1988). Summary judgment is proper where the non-moving party fails to produce evidence sufficient to establish an element essential to that party's case and on which the party will bear the burden of proof at trial. Celotex v. Catrett, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989).

 Taylor is entitled to de novo review of his discrimination claims in this court. The court notes, however, that the record before it on this motion is voluminous and well-developed. It includes personnel documents, affidavits, the transcript of sworn testimony before the United States Army Civilian Appellate Review Agency (USACARA) and the reports and opinions of both the USACARA and the Equal Employment Opportunity Commission (EEOC). These administrative materials are pertinent on summary judgment and, in some circumstances, may provide the basis for granting a summary judgment motion. Nolan v. Cleland, 686 F.2d 806 (9th Cir. 1982); United States v. Pent-R-Books, Inc., 538 F.2d 519, 527 (2d Cir. 1976), cert. denied, 430 U.S. 906, 51 L. Ed. 2d 582, 97 S. Ct. 1175 (1977); Hackley v. Roudebush, 171 U.S. App. D.C. 376, 520 F.2d 108 (D.C. Cir. 1975); Sperling v. United States, 515 F.2d 465, 481-82 (3d Cir. 1975), cert. denied, 426 U.S. 919, 49 L. Ed. 2d 372, 96 S. Ct. 2623 (1976); See also Powers v. Dole, 782 F.2d 689, 693-94 (7th Cir. 1986) (affirming a district court's grant of summary judgment in reliance upon an administrative record).

 Summary judgment is infrequently an appropriate resolution in discrimination cases, where discriminatory intent is often proven by circumstantial evidence. However, even when issues of motive or intent are at stake, summary judgment is proper where the plaintiff presents no indications of motive and intent supportive of his position. Munson v. Friske, 754 F.2d 683, 690 (7th Cir. 1985). Further, in a summary judgment motion "a party may not rest on mere allegations or denials of his pleadings; similarly, a bare contention that an issue of fact exists is insufficient to raise a factual issue." Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.), cert. denied, 464 U.S. 960, 78 L. Ed. 2d 336, 104 S. Ct. 392 (1983).

 I. Age Discrimination Claims

 Taylor contends that he was discriminated against on the basis of age when the Rock Island Arsenal failed to hire him for open positions for which he was qualified. Specifically, he alleges that the RIA discriminated against him when he was not selected for two quality assurance specialist GS-1910-09 positions in May 1987, and another quality assurance specialist position in November 1987. He contends that those hired were less qualified and under the age of forty.

 The burden of proof formula set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), Title VII cases, applies in cases arising under the ADEA. See Ayala v. Mayfair Molded Products Corp., 831 F.2d 1314, 1318 (7th Cir. 1987), citing Tice v. Lampert Yards, Inc., 761 F.2d 1210, 1212 (7th Cir. 1985). First, the plaintiff has the burden of proving by a preponderance of evidence a prima facie case of age discrimination. If plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate some legitimate, non-discriminatory reason for the employee's rejection. Should the defendant meet this burden, the plaintiff will then have the opportunity to prove by a preponderance of evidence that the reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. See Burdine, 450 U.S. at 252-53.

 To establish a prima facie case of age discrimination for his failure to be hired, Taylor must prove that (1) he was a member of a protected class (age 40-70); (2) he was subject to an adverse action, i.e., he was not hired; (3) he was qualified for the position; and (4) the position was filled by a person who was not a member of the protected class. Gagne v. Northwestern Nat'l ...

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